Why Surrogacy Is Illegal in so Many Places

When Cristie Montgomery, 67, told her husband she wanted to be a surrogate, in the late 1980s, she remembers him saying he hoped she would just forget about it. “Thirty years ago, people weren’t talking about surrogacy,” she says. After being told at 16 it would be very hard for her to get pregnant, and worrying about it throughout her twenties, she did give birth to two daughters of her own. At the same time, she saw three close friends struggle with the heartbreak and uncertainty of infertility.

“Having thought that would be my path made me just really appreciate how fortunate I was to have my girls,” Montgomery says. “For me, being a surrogate was a way of passing on the good fortune I was fortunate enough to have.” She says it took about nine months to bring her husband around to the idea.

Montgomery gave birth to her “surrogate child,” a baby girl, in December 1989. Three months later, the stay-at-home mom started her own business, Surrogate Parenting Services, out of her house in Laguna Niguel, California, drawing on her interest in biology, and learning from attorneys about the legal side of things as she went along.

“I really came out of it with a passion for surrogacy, how great this can be for everyone involved if it’s done right,” Montgomery says. “I also felt it could be done better than it was being done back then, so I decided to start a program out of my home. My girls were 4 and 6, so I could be home with them and do something I felt strongly about.”

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Since then, Montgomery says 748 babies have been born through her program, and she has seen attitudes about surrogacy change. Hollywood has definitely played a role. Kim Kardashian West was the latest celeb to announce that she and husband Kanye West are expecting their fourth child through a surrogate; the couple’s third child was born via another surrogate last January. Giuliana Rancic, Jimmy Fallon, Sarah Jessica Parker, Gabrielle Union, and Tyra Banks are just a few of the other celebrities who have opened up about their decision to use surrogates.

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“When I first started this 29 years ago, there were doctors who would not work with surrogacy, because it was kind of that fringe, scary, new thing out there, and there were lawyers that didn’t want anything to do with it. And now, surrogacy is a common part of fertility treatment,” Montgomery says. “It’s still harder to find the surrogates than the parents, but there are definitely more women who are aware of surrogacy and consider being a surrogate.”

But despite the seeming frequency of Hollywood’s surrogate pregnancy announcements, surrogacy is still out of reach for most people; it’s illegal in most countries and essentially banned in three states. And where surrogacy is legal, it’s often exorbitantly expensive.

The U.S. is actually one of only a few countries in the world where both traditional and gestational surrogacy are allowed. And that’s when it’s done for “altruistic” as well as “commercial” reasons, according to a 2018 U.N. Human Rights Council report. In traditional surrogacy, a woman donates her egg and carries the pregnancy, making her genetically related to the baby. In gestational surrogacy, a woman carries a couple’s fertilized embryo and is not genetically related to the baby.

But not all states are created equal when it comes to surrogacy. Michigan, New York and Louisiana don’t allow paid surrogacy arrangements, or prohibit both intended parents from being on the birth certificate, according to a legal map created by surrogacy agency Creative Family Connections. Restrictions vary; in New York, for example, the surrogate is listed as the birth mother on the birth certificate; in Louisiana, only heterosexual, married couples using their own sperm and egg can use surrogacy, according to Creative Family Connections’ analysis of local laws.

Connecticut, Washington, D.C., Delaware, Maine, New Hampshire, New Jersey, Nevada, Rhode Island, Vermont and California all have laws that allow surrogacy for all parents, and for both intended parents to be named on the birth certificate, according to the agency. The rest of the states have policies that lie somewhere in between.

What surrogates are paid also varies widely by state; Creative Family Connections, based in Maryland, offers first-time surrogates between $32,000 to $42,500 in base pay, according to their website. At Montgomery’s firm in California, first-time surrogates are paid between $45,000 and $49,000, depending on whether they have approved health insurance or not. Often, surrogates can earn extra money for second or third pregnancies, carrying twins and other factors.

For intended parents in California, the whole thing “probably averages around $125,000” not including any IVF costs, Montgomery says. Agencies like hers collect a fee of between $18,000 and $25,000, and then there are attorney fees, psychologist fees, health insurance and life insurance all for the surrogate, she explained. Some states allow parents to put the surrogate on their insurance plans, but many don’t.

The difference between what surrogates are paid and what intended parents pay for their services highlights concerns worldwide that wealthy people could take advantage of poor women, including in developing countries, where perhaps women are willing to go to greater lengths to provide for their families.

“Surrogacy is a growing industry driven by international demand, making it an area of concern for children’s rights and protection. Commercial surrogacy, as currently practiced in some countries, usually amounts to the sale of children,” Maud de Boer-Buquicchio, the UN Special Rapporteur on the sale and sexual exploitation of children, said in a statement when the report was published last year.

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Montgomery says that generally, most of the surrogates she works with became mothers earlier in life and have completed high school or some college, while intended parents are generally college-educated professionals, “so they did come to this place from usually pretty different life paths,” she explains.

In her statement, de Boer-Buquicchio said, “This practice entails power imbalances and increases the vulnerability of the children and surrogate mothers to various forms of exploitation." For that reason, the U.N. has called for stricter regulations worldwide, possibly making surrogacy tourism a thing of the past. But here's where things stand right now:

France and Germany are among the countries that ban all types of surrogacy, the U.N. report found, while Australia, Greece, New Zealand, South Africa and the U.K. all permit “altruistic” surrogacy, but forbid the kind where money changes hands. Georgia, Russia, and Ukraine are among the places where commercial surrogacy is allowed. Some countries that had become hubs for commercial surrogacy — including Nepal, Cambodia, and Thailand — have moved to ban the practice or restrict it to domestic parents, and surrogates offering their services for altruistic reasons.

Of course, some would-be parents also come to the U.S. to find surrogates. Between 1999 and 2013, 18,400 babies were born via gestational carriers in the U.S., according to the Centers for Disease Control and Prevention (CDC). In 16 percent of those cases, the parents took their new baby home to a country that was not the U.S.

Montgomery says that while California has passed some legal guidelines in recent years, all she needed was a standard business license in order to get started, and she’s proud of her company’s track record. In her 29 years in business, she says she has never had a lawsuit between parents and a surrogate, nor had a surrogate experience a change of heart while pregnant.

“We work really hard at building a team effort, so the parents, the surrogate and her family, and the agency, we’re all on a team,” Montgomery says. “If we work together and support each other, and we get to the end and a beautiful baby is born, we can all say, ‘Yay! We all did this together!’ It can really be an awesome journey.” But with the legal protections for surrogates ever-changing, and costs more than many hopeful parents can afford, it can be a harrowing one, too.